Defense Verdict Upheld on Post-trial Motion in Levaquin MDL

About 1700 federal cases sit in the MDL for the product Levaquin makers.  Levaquin is an antibiotic used to treat a variety of bacterial infections, including upper respiratory infections. Plaintiffs in the MDL allege they have been prescribed Levaquin, and allege that it causes tendons to rupture. They claim that defendants' warnings about this alleged side effect were inadequate.  Defendants deny these allegations.

In this mass tort, the MDL court has begun to try bellwether cases. Recently the MDL court rejected a plaintiff's post-trial motion after he lost the third such trial. See Straka v. Johnson & Johnson, No. 08-5742 (D. Minn., 9/28/12).  A jury found that the alleged failure to warn Straka's prescribing physician about the risk of tendon rupture did not cause the plaintiff's injuries. After trial, one issue was the ubiquitous and almost never prevailing "verdict against the weight of the evidence" argument.  The court disposed of this by noting the sufficient evidence at trial supporting the jury's finding in that Straka's injuries were caused by something other than Levaquin, and that a different warning would not have changed his physician's decision to prescribe Levaquin. Defendants presented evidence about Straka’s steroid use and testimony that steroid use can contribute to tendon injury without the use of Levaquin.  And defendants did a good job presenting evidence that the prescriber could not remember reading the Levaquin label and did not learn of the tendon-associated risks of Levaquin until well after the black box warning was added and a Dear Doctor letter was distributed.

Perhaps more interesting for the trial lawyers among our readers is the argument for a new trial because one juror worked for a company that had a business connection to one of the defendants. Specifically the juror disclosed after trial began that her employer provided services to one of the defendants' (J&J) disability insurance carrier. Straka contended the doctrine of “implied bias” required the court to strike this juror. But the juror could not recall having ever worked on a Johnson & Johnson issue, and she indicated that she was unaware what proportion of her work came indirectly from Johnson & Johnson. When asked if her company’s connection with Johnson & Johnson would affect her ability to be fair and impartial, she said no. 

The doctrine of implied bias (also referred to in some cases as “implicit bias”) requires a court to strike a juror in extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. See Sanders v. Norris, 529 F.3d 787, 792 (8th Cir. 2008).  The juror here did not have the type of financial relationship that would require the Court to presume implied bias: she was not employed by defendants, or even employed by a company that worked directly for Johnson & Johnson.  Nor was it unlikely that the average person could remain impartial in deliberations in this situation. She was sufficiently removed from Johnson & Johnson that she did not realize that her company did any work relating to the defendants until a co-worker recognized it. So no error in proceeding.

[FYI, according to the court, some MDL parties discussed have discussed a tentative settlement agreement reached on September 25, 2012, in a conference held in front of Chief Magistrate Judge Boylan. This tentative settlement agreement is being drafted, and involves the case inventories of 6 law firms. The effect of this settlement would reduce the MDL case count by 845 cases and plaintiffs. At the time of the status conference several other plaintiffs' firms have expressed an interest in exploring settlement, but there remain firms that are interested in going forward with the litigation, according to the court.]


 

Appeals Court Vacates Asbestos Plaintiff Jury Verdict

The Florida court of appeals recently reversed a $6.6 million judgment for the plaintiff in an asbestos case raising interesting issues of the law applicable to design and warning defects. See Union Carbide Corp. v. Aubin,  No. 3D10-1982 (3d DCA 6/20/12).

Plaintiff Aubin worked construction and alleged he routinely handled and was otherwise exposed to joint compounds and ceiling textures that contained asbestos. He contracted mesothelioma and sued.  At trial, plaintiff presented studies purportedly linking defendant's product to a higher degree of danger with respect to the development of asbestosis than other types of asbestos, but he failed to introduce any evidence suggesting it was more dangerous than other asbestos fibers with respect to the contraction of cancer or peritoneal mesothelioma. Also at trial, the parties offered contrasting evidence as to whether Union Carbide adequately informed intermediary manufacturers about the dangers of asbestos. Defense representatives testified that along with an OSHA-mandated warning label, Union Carbide regularly updated its clients regarding the dangers of asbestos as such dangers came to light. Conversely, plaintiff claimed that because there were no warnings on the end product, he was unaware of the dangers associated with the liberation of asbestos fibers into the air, and, therefore, allegedly did not wear any respiratory masks or protective gear while working around the asbestos.

Relying on the component parts doctrine recognized by the Restatement (Third) of Torts: Products Liability § 5 (1997), adopted by the 3d DCA in Kohler Co. v. Marcotte, 907 So. 2d 596, 598-99 (Fla. 3d DCA 2005), defendant moved for a directed verdict on plaintiff's strict liability and negligence claims. That motion was denied. At the charge conference, Union Carbide also requested jury instructions regarding the Third Restatement’s component parts doctrine, The trial court denied Union Carbide’s requests, choosing instead to deliver the special instructions that were requested by plaintiff. The key instruction read: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end users of an unreasonable danger in the contemplated use of its products.”  The requested context was not provided.

The court of appeals concluded that the trial court erred, first, in determining that Aubin’s claims were governed by the Second Restatement rather than the Third Restatement and, as a result, erred in denying Union Carbide’s motion for a directed verdict with respect to Aubin’s design defect claim. Second, the trial court erred in instructing the jury that Union Carbide had a duty to warn end-users without also instructing the jury that a defendant could have discharged this duty by adequately warning the intermediary manufacturers, and reasonably relying on them to warn end-users. Accordingly, the court remanded for a new trial as to the warning defect claim.

Specifically, the trial court erred as a matter of law in determining that Aubin’s claims were governed by Sections 388 and 402 of the Second Restatement.  In Kohler, the court had adopted the component parts doctrine articulated in Section 5 of the Third Restatement as the governing law for products liability claims arising out of a defendant’s sale of a component part to a manufacturer who then incorporates the component into its own products. Kohler, 907 So. 2d at 598-99. This Appeals Court’s adoption of the Third Restatement was later reaffirmed and extended in Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So. 3d 976, 997 (Fla. 3d DCA 2010), which rejected the Second Restatement’s “consumer expectations” test as an independent basis for finding a design defect, determining instead that, after Kohler, the appropriate standard is the “risk-utility/risk-benefit” test articulated in Section 2 of the Third Restatement.

Regarding the warnings claim instructions, reversible error exists where the trial court delivers an instruction that reasonably might have misled the jury.   Plaintiff Aubin had requested, and the trial court granted, the special instruction: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end-users of an unreasonable danger in the contemplated use of its products.” While this requested special instruction was "technically accurate," it was, standing alone, misleading because Florida law provides that this duty may be discharged by reasonable reliance on an intermediary. Recognizing that Aubin’s requested instruction was misleading, Union Carbide requested that Aubin’s special instruction be supplemented with an explanation of how the duty to warn could have been discharged by Union Carbide. The trial court rejected Union Carbide’s request, and delivered Aubin’s instruction without further explanation. This was also error.

The court of appeals explained that under both the Third Restatement and the Second Restatement, the determination as to whether a manufacturer like Union Carbide may rely on intermediaries to warn end-users is to be analyzed by the trier of fact, and the standard to be  employed is one of “reasonableness.” The Third Restatement provides several factors to guide the analysis, and these factors are substantially the same as those set forth in the Section 388 of the Second Restatement under comment n.  The trial court, however, did not instruct the jury on any of these factors. 

Because the trial court’s instruction communicated to the jury that Union Carbide had a duty to warn end-users, but did not inform the jury that Union Carbide could have discharged its duty by adequately warning the intermediary manufacturers and reasonably relying on them to warn end-users, the court of appeals concluded that the instruction given was misleading and entitled defendant to a new trial.

FJC Releases Report on Juror Use of Social Media

Here at MassTortDefense we have observed the many ways in which the evolution and spiking popularity of social media has affected the practice of law.  We are blogging, obviously, can be followed on twitter (@MassTortDefense), and have a presence on Linkedin. On the day Facebook has filed for an historic IPO, it may be a good time to look at the issue of the use of social media by jurors in the courtroom.

The Federal Judicial Center released a report on the topic last week.  At the request of the Committee on Court Administration and Case Management, the Federal Judicial Center conducted a survey of district courts to assess the frequency with which jurors use social media to communicate during trials and deliberations, and to identify effective strategies for curbing this behavior. The results, based on the responses of 508 responding judges, indicate that detected
social media use by jurors is so far infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom. The most common strategy is incorporating social media use into jury instructions—either the model jury instructions provided by CACM or judges’ own personal jury instructions. Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom.
 

Only 30 judges reported instances of detected social media use by jurors during trials or deliberations. But almost half the judges said they had no good way of knowing whether jurors were using social media.  Nearly 94 percent of the judges who responded to the survey have specifically barred all case-connected use of social media. Judges admit that it is difficult to police jurors, and therefore use of social media is difficult to detect.

Of the types of social media used by jurors, Facebook was ranked as the most common, with instant messaging second.  Twitter lagged behind in this survey.  In most instances, the social media use was in the form of posts about the progress of the case. But the judges reported a handful of attempts by jurors to  “friend” one or more participants in the case. And three reported jurors who revealed aspects of the deliberation process.

 

 

District Court Upholds Punitives in Surprising Decision

In a surprising and somewhat questionable decision, the U.S. District Court for the Northern District of Ohio recently upheld a jury verdict awarding punitive damages with a ratio of more than 6-1 between punitive and compensatory damages. Cooley v. Lincoln Electric Co., No. 1:2005-cv-17734 (N.D. Ohio, 3/7/11).

The case was part of the welding fumes mass tort.  Plaintiff Curt Cooley used welding rods at work and home for about 40 years. After being diagnosed with a form of manganese poisoning, Cooley  sued several welding rod manufacturers, alleging that defendants knew that inhaling welding fumes presented a risk of irreversible neurological injury but failed to adequately warn of the risk.

The overwhelming majority of welding rod verdicts have been for defendants, but here a jury returned a verdict for plaintiffs, awarding $787,000 in compensatory damages, after reduction for the allocated plaintiff's comparative fault of 37%, and $5 million in punitive damages.

In post-trial motions, defendants moved, inter alia, for reduction of the punitive damages. In BMW
of North America, Inc. v. Gore
, the Supreme Court articulated three guideposts for lower courts to use in evaluating whether a punitive damages award is excessive. These guideposts are: (1) “the degree of reprehensibility” of defendants’ conduct; (2) “the disparity between the harm or potential harm suffered by [Cooley] and his punitive damages award;” and (3) “the difference between this remedy and the civil penalties authorized or imposed in comparable cases.”  The court here seemed overwhelmed by the first factor and gave insufficient weight to the second and third.

In State Farm Mutual Automobile Ins. Co. v. Campbell, the Supreme Court articulated five criteria for evaluating the degree of reprehensibility: (1) “the harm caused was physical as opposed to economic;”  (2) “the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;” (3) “the target of the conduct had financial vulnerability;” (4) “the conduct involved repeated actions or was an isolated incident;” and (5) “the harm was the result of intentional malice, trickery, or deceit, or mere accident.”

The trial court found that the first two criteria allowed the jury to find a high degree of  reprehensibility. Here, the harm to Cooley was physical, but not fatal. Yet, the court rejected defendants' argument that this factor is not as strong as it is in cases where a person died as a result of a defendant's conduct.  The court concluded  that the jury was entitled to conclude defendants knew manganese in welding fumes could cause permanent neurological injury, but chose to give an inadequate warning.

The second guidepost looks to the mathematical relationship between compensatory and
punitive damages. The trial court stressed that the Supreme Court has avoided imposing a bright-line ratio between compensatory and punitive damages, and ignored the numerous cases questioning high single-digit multipliers, which are less likely to comport with due process. The trial court rejected the observation that for some defendants the ratio was close to 9-1. The jury awarded $1.25 million in compensatory damages, but assigned 37% fault to Cooley,
reducing the compensatory award to $787,500. It awarded punitive damages in the total amount of
$5 million, allocated among the defendants as: ESAB, $1.75 million; Hobart, $1.75 million; Lincoln, $750,000; and BOC, $750,000. Using a logical approach, the ratios are as follows: ESAB, 8.9:1; Hobart, 8.9:1; Lincoln, 3.8:1; and BOC, 3.8:1. But, if, instead, the ratio is not calculated for each individual defendant, the overall ratio is still $5 million divided by $787,500, or 6.3:1. The court was persuaded by the fact that all of these ratios, using either of these different approaches, are single-digit.  The court also found that the reprehensible conduct supported a higher ratio.

The court went on to twist the next factor - the comparison of punitives to compensatories-  right around.  It noted that whether viewed as $1.25 million or $787,500, the compensatories were "not large considering Cooley’s circumstances."   For example, Cooley testified he is depressed and
impotent, which are symptoms of manganese poisoning. All things considered, the jury’s award of
compensatory damages was "relatively conservative, making for a low denominator in the ratio." And since the denominator was "conservative" and "low," the higher ratio when compared to punitives was permitted.  However, the same jury that found punitive damages level conduct, found plaintiff 37% at fault, and awarded all of the damages it thought were appropriate to fully compensate the plaintiff.  This is not a case where the multiplier was high because the  compensatory damages are merely a nominal sum in recognition of an injury difficult to quantify in monetary terms.  As the court noted, this case involves a significant injury, and the jury awarded what it awarded.  The court seemed to be approaching the line of substituting its assessment of damages for the jury's, and upholding the punitive award because the compensatory award was too "conservative."

Defendants also argued that the punitive damages award was excessive because, using the factor of comparison to other fines and penalties, civil penalties under OSHA would be limited to approximately $70,000, the maximum fine per violation. The court rejected this because OSHA has never found a violation or fined defendants, and thus "analysis of this issue is necessarily speculative."  In fact, the comparison is not just to actual fines assessed, but to potential fines in order to give the court an idea of how the legislature and society would assess a penalty for the conduct alleged. If it was is unclear whether OSHA would treat the conduct in plaintiff's workplace as a single violation subject to a maximum fine of $70,000, as defendants argued, or impose a fine separately for pieces of the conduct, as plaintiff argued, the issue should have been decided, not pushed aside.

Finally the court rejected any relevance to any aspect of the punitive damages ratio analysis of the fact that Cooley's injury might have been avoided had he read a warning or a Material Safety Data Sheet, particularly those sent in the last decade of his career. This was only relevant to comparative fault for compensatory damages, said the court. But, in reality, it should have been considered a major factor in the reprehensibility analysis.

 

 

Federal Appeals Court Vacates Class Action Verdict In Radiation Case

Last week, a federal appeals court vacated a $926 million judgment against Rockwell International  and Dow Chemical over alleged plutonium contamination. See Cook v. Rockwell International Corp., No. 08-1224 (10th Cir., 9/3/10).

The owners of properties near the former Rocky Flats Nuclear Weapons Plant (“Rocky Flats”) filed a proposed class action against the facility’s operators under the Price-Anderson Act, alleging trespass and nuisance claims arising from the alleged release of plutonium particles onto their properties. Rocky Flats, located near Denver, Colorado, was established by the US in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989.

Some radiation cases seem to last longer than the half-life of uranium.  The complaint here was filed in 1990.  A class was certified in 1993. After over fifteen years of litigation, the district court conducted a jury trial between October, 2005 and January, 2006, resulting in a jury verdict in favor of the plaintiff class, which numbered about 15,000.

This appeal ensued, and a main issue was the jury instructions (we leave for another day the preemption and PAA statutory issues). In accordance with the district court’s construction of Colorado law, the jury instructions did not require plaintiffs to establish either an actual injury to their properties or a loss of use of their properties. With respect to the nuisance claims, the district court instructed the jury that plaintiffs could establish defendants’ conduct interfered with the use and enjoyment of the class properties by proving defendants’ conduct exposed plaintiffs to “some increased risk of health problems” or caused conditions “that pose a demonstrable risk of future harm" to their property area.  As to plaintiffs’ trespass claims, the district court instructed the jury that plaintiffs were not required to show that plutonium is present on the class members' properties at any particular level or concentration, that they suffered any bodily harm because of the plutonium, or that the presence of plutonium damaged these properties in some other way.

First, the nuisance theory. Under Colorado law, a plaintiff asserting a nuisance claim must establish an interference with the use and enjoyment of his property that is both “substantial” and “unreasonable.”  A jury may find the presence of radioactive contamination creates an actual risk to health and thereby interferes with a plaintiff’s use or enjoyment of his land if the contamination disturbs the plaintiff’s comfort and convenience, including his peace of mind, with respect to his continued use of the land.  But, said the court,  a scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference. To the extent plaintiffs here relied on anxiety from an increased risk to their health as an interference with the use and enjoyment of their properties, that anxiety must arise from scientifically verifiable evidence regarding the risk and cannot be wholly irrational. No reasonable jury could find that irrational anxiety about a risk that cannot be scientifically verified tips this balance so as to render the interference "unreasonable."  So the charge was wrong to the extent it permitted any subjective anxiety to suffice for an unreasonable interference.

The court of appeals then turned to the trespass theory.  And here, the issue turned on whether the plaintiffs' claim was a traditional trespass theory or a so-called "intangible trespass."  The parties agreed that to prevail under a traditional trespass claim, a plaintiff must establish only a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession. A plaintiff need not establish any injury to his legally protected interest in the land or damage to the land itself.  Unlike a traditional trespass claim, however, the court made clear that an intangible trespass claim requires an aggrieved party to prove physical damage to the property  caused by such intangible intrusion. 

So is the invasion of plutonium particles onto real property a traditional or intangible trespass claim?  The cases suggest that “intangible” is something that is impalpable, or incapable of being felt by touch. Noise intrusion and electromagnetic fields emitted by power lines are examples of the intangible. Neither can be perceived by any of the senses.   Here,  plaintiffs had to concede that the plutonium particles allegedly present on their properties are impalpable and imperceptible by the senses. Although the particles in question have mass and are "physically present" on the land, because the particles are impalpable, the trespass alleged here must be tried as an intangible trespass.

Consequently, the instructions on this point were also in error, and on remand, plaintiffs will be required to prove the plutonium contamination caused “physical damage to the property” in order to prevail on their trespass claims.

Interestingly, because the district court’s class certification analysis failed to consider whether
plaintiffs could establish various elements of their claims, properly defined, the 10th Circuit also reversed the district court’s class certification ruling. Upon remand, the district court will have to  revisit the class certification question to determine whether plaintiffs can establish the proper elements of their claims on a class-wide basis.  Obviously, the need to show unreasonable interference and physical damage may each create predominating individual issues.

 

New Proposed Jury Instruction on Electronic Devices

At its last meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions that federal district judges are to consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.

The CACM Committee developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones, BlackBerries, or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and, even, imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve.

The instructions admonish the jurors to decide the case based solely on the evidence presented within the four walls of the courtroom. It also notes in part that jurors may not communicate with anyone about the case on a cell phone, through e-mail, BlackBerry, iPhone, text messaging or on Twitter.

 

Jury Returns Defense Verdict in FEMA Trailer Trial

Last week a federal jury in Louisiana returned a defense verdict in a plaintiffs' suit over alleged exposure to formaldehyde fumes while living for several months in a FEMA-provided trailer. In Re: FEMA Trailer Formaldehyde Products Liability Litigation, Age v. Gulf Stream Coach Inc., No. 09-02892, E.D. La.). The government had made the trailer available after Hurricane Katrina destroyed the plaintiffs' home in 2005.

Plaintiffs sued manufacturer Gulf Stream Coach Inc. and installer Fluor Enterprises Inc., alleging that elevated levels of formaldehyde aggravated family members' asthma and increased their risk for getting cancer.  (FEMA was dismissed as a defendant in the lawsuit because of the two-year statute of limitations in cases brought against the federal government.)  They argued that Gulf Stream Coach, in expediting production of the housing units following Hurricanes Katrina and Rita, used substandard materials and/or unsafe practices during the manufacturing process, which allegedly resulted in the temporary housing units containing higher than normal levels of formaldehyde. Plaintiffs alleged that Fluor's installation methods contributed to greater formaldehyde exposure.  They further charged that the FEMA trailer deviated from government safety specifications and that Gulf Stream failed to warn the government about the dangers of formaldehyde, which is found in construction materials as well as in glues and adhesives used in the manufacture of the units.

The claim is one of many hundreds of suits filed that are now part of the MDL, and one of the first five bellwether cases selected for trial. Readers of MassTortDefense will recall how Hurricane Katrina devastated much of the Gulf Coast in 2005. The total damage of Hurricane Katrina has been estimated at $75 billion, while not-much-later Hurricane Rita caused $10 billion in damage. The government, through FEMA, moved individuals whose homes were lost or deemed uninhabitable into makeshift housing provided by the agency. Plaintiffs generally allege that the trailers had components that exposed them to dangerous and excessive levels of formaldehyde.

The defense here presented alternative causation evidence on the alleged respiratory issues, and noted that formaldehyde is found in safe levels in many products, including cosmetics, foods and shampoo. The defendants sold this trailer to the most sophisticated purchaser in the world, the United States government, argued the defense, and there is no duty to warn someone about something they know about already. The defense argued that Gulf Stream wasn't obligated to build a "perfect product."

The jury of five men and three women, after 8 days of testimony, decided that the trailer made by Gulf Stream Coach Inc. was not an “unreasonably dangerous” product under Louisiana law. Judge Kurt D. Engelhardt presided over the trial.  A likely issue on appeal will be the MDL court's decision to allow certain defendants to assert the government contractor defense.

Juror Internet Search Warrants New Trial

Many a reader of MassTortDefense has wondered and worried about whether jurors were following a court's admonishment not to see or read anything about the issues in a case outside of the court room.  Sequestration is rare, especially in a civil case. (The O. J. Simpson jury was sequestered for eight and a half months.)  And with the advent of the Internet, jurors have potential access not only to publicity about the actual trial, but fingertip access to research tools on any issue in the case. Some of the same concerns arise with potential jurors; it may be impossible to ask enough specific questions in the voir dire process to ferret out every such issue.

A recent take on this comes in Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09).  The South Dakota Supreme Court ruled that a potential juror's Google search of a defendant seat belt manufacturer, and his conversation about his findings with other jurors during deliberations, warranted a new trial.

Plaintiffs' decedent was a  sixteen year old driver of her mother's vehicle, on the way to school. The vehicle crossed the centerline, traveled back into its lane of traffic, slid sideways off of the shoulder of the road, and rolled almost three times down a steep ravine before hitting a tree. The girl was killed.  Plaintiffs alleged that the seat belt unlatched due to inertial forces acting on the buckles during the rollover. General Motors Corporation and Suzuki Motor Corporation settled their respective claims before trial.

Takata, the manufacturer of the model TK-52 seat belts installed in the vehicle, denied Plaintiffs' claims. Takata proceeded to trial under the theory that the decedent did not buckle her seat belt before the crash, and that she negligently failed to maintain control over the vehicle. Takata also denied that inertial unlatching of the model TK-52 seat belts was possible in real world accidents.
 

Takata filed a motion in limine seeking to exclude or limit evidence on alleged prior seat belt failures. The trial court determined that such evidence was “relevant solely to the issue of notice regarding the alleged defect” and irrelevant to whether a defect actually existed in the seat belt involved in this case. It then limited the evidence of prior alleged accidents, claims, and lawsuits to the issue of notice.


At trial, Plaintiffs presented evidence that other drivers or passengers had experienced seat belt failures in the past. Some of the witnesses were uncertain whether their seat belt was manufactured by Takata, or whether notification given to General Motors was passed on to Takata. Evidence was also presented to the jury that ten other lawsuits had been filed against Takata alleging seatbelt malfunctions. The jury was instructed that evidence of other lawsuits and complaints was “only for the purpose of establishing whether Takata had notice of the alleged defect.”

During deliberations, one juror asked out loud whether Takata had ever been sued. A juror (Flynn, according to the opinion) responded that he had done a Google search and had learned that Takata manufactured seat belts and airbags but did not find any lawsuits during his search. The entire exchange lasted approximately three to five minutes, and no report was made to the trial court concerning Flynn's remarks. The jury deliberated for approximately another one and one-half hours before reaching a verdict for Takata.  Plaintiffs later filed a Motion for New Trial alleging juror misconduct. Affidavits from ten jurors were filed with the motion.

The state Supreme Court noted it was announcing no hard and fast rule that all such types of Internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict. Rather, the court gave deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. The trial court's award of a new trial was affirmed.
 

The reasoning: statutory language in many jurisdictions limits the type of information that a juror may be asked to provide via an affidavit or under oath at a hearing on a motion for new trial.  And that's the only way, typically, for a litigant to show juror conduct.  The prohibition on admitting testimony and affidavits pertains to intrinsic information, which includes statements or discussions which took place during deliberations.  Testimony and affidavits concerning extrinsic information, however, may be obtained from a juror.  Extrinsic information includes media publicity, conversations between jurors and non-jurors, and evidence not admitted by the court.  It also includes “knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial, experiments, investigations, news media, etc.”   Secondly, the type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room.

Takata argued that the information Flynn obtained during his Google searches was not extrinsic  because it was obtained before trial and was discoverable through voir dire.  As such, Takata argued it should have been explored during voir dire. The court found that Takata's argument that Plaintiffs could have asked more probing questions and possibly discovered Flynn's prior knowledge was likely valid. Takata's argument, however, missed the mark, said the court, in that Flynn obtained the information (that no lawsuits were listed on Takata's home page) after receiving his jury summons; that fact was specific to the defendant and relevant to evidence that was admitted at trial for a limited purpose under a carefully crafted order.  It pertained to the issue of knowledge of a defect with the TK-52 seat belt, an issue hotly contested between the parties, and it directly contradicted the evidence admitted at trial under the trial court's limiting order. This was not simply information that Flynn obtained in passing from media outlets prior to his awareness that a suit against defendants was pending.  The juror apparently sought out the information specifically in response to the receipt of the summons in which the names of the defendants were first made known to him, observed the court.

The burden of persuasion as to prejudice is on the party seeking a new trial. The trial court concluded as a matter of law that Flynn's extrinsic information prejudiced the jury's verdict. The information was presented to jurors at an arguably critical juncture during deliberations, and it had a tendency to influence the jury in a manner inconsistent with the evidence and the instructions of the trial court. Extrinsic information that goes beyond the mental processes of one juror and becomes known to other jurors can prejudice a jury verdict and affect the substantial rights of the party seeking a new trial. At least four jurors, including Flynn, were involved in the conversation in which Flynn revealed his Google search. While all jurors agreed that the jury did not discuss the Google search as a panel during deliberations, the state Supreme Court did not require that the entire jury be exposed to extrinsic information in order to proceed to determine whether there was prejudicial effect.

Takata argued on appeal that the verdict on the defect claims had already been put to a vote, and the jury found that her seatbelt was not defective. Plaintiffs argued in response that the jury verdict form had not been signed at the time Flynn made his remarks. Thus, they concluded the jury had yet to reach a final verdict at the time in question.

The state high court found that the trial court was in the best position to determine which claims had been dealt with and which ones remained to be discussed by the jury at the time of Flynn's comments. It concluded that the issue of whether the seat belts were defective and whether Takata had notice was "still in play" at the time Flynn revealed his Internet searches to members of the jury.

Defense Jury Verdict In Welding Rod Trial

A jury in Mason County, W.Va., issued a unanimous verdict last week for welding industry defendants, rejecting claims that injuries to former welder John Belcher were caused by their products. Adkins, et al v. Airco, et al., No. 06-103 (W.Va. Cir. Ct., Mason Cty.)

Apparently jurors deliberated for only a couple hours after an eight-day trial before Circuit Judge David W. Nibert.  Defendants at the trial included Lincoln Electric Company Inc., Hobart Brothers Inc. and The BOC Group Inc. The Circuit Court had entered a gag order before trial to avoid prejudicing potential jurors, so there wasn’t much press on this one.

Defendants have won about 85% of the trials so far in this mass tort. And along with numerous defense verdicts like this one, this litigation has seen the dismissals of thousands of cases. The total number of pending welding fume cases has dropped by more than one half since January 2006. In the MDL in Cleveland, the plaintiffs recently dismissed more than two thirds of the cases they had certified as "ready for trial. "

The next bellwether trial in the federal MDL in front of  Judge O'Malley is set for September. Plaintiff Cooley, a long time welder from Iowa, alleges manganese neuro-toxicity, which defendants contend is not actually a recognized disease. Both sides have recently filed motions to knock out the other's expert opinions under the Daubert doctrine.

 

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Update on FEMA Trailer MDL

A federal judge has decided an that an advisory jury can hear evidence on claims against the U.S. government in bellwether trials in the MDL concerning alleged formaldehyde-laden trailers. In re: FEMA Trailer Formaldehyde Products Liability Litigation, MDL 1873 (E.D. La.)

Readers of MassTortDefense will recall how Hurricane Katrina devastated much of the Gulf Coast in 2005. The total damage of Hurricane Katrina has been estimated at $75 billion, while not-much-later Hurricane Rita caused $10 billion in damage. The government, through FEMA, moved individuals whose homes were lost or deemed uninhabitable into makeshift housing provided by the agency.  Plaintiffs allege that the trailers had components that exposed them to dangerous and excessive levels of formaldehyde.

The court has decided that it will hold bellwether trials in the MDL. But the defendants include both private entities and the government. The government moved to strike the jury demand and requested that a jury not be involved in any manner in determining its liability. The federal government argued that, because the plaintiffs have filed claims under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 and 28 U.S.C. § 1346(b), the use of any jury is precluded under 28 U.S.C. § 2402 which states that “[a]ny action against the United States under section 1346 shall be tried by the court without a jury. . .”  The Plaintiffs’ Steering Committee (“PSC”) and the nongovernmental defendants both opposed the motion. Indeed, both the PSC and the non-governmental defendants contended that it is both permissible and sensible for the court to utilize an advisory jury who will hear evidence of the Government’s alleged fault in order to properly apportion liability to all parties. The government claimed that any use of even an advisory jury contravenes the statute and congressional intent to have FTCA cases decided by the court without a jury.

Rule 39(c) of the Federal Rules of Civil Procedure states, in pertinent part, “[i]n an action
not triable of right by a jury, the court, on motion or on its own . . . may try any issue with an
advisory jury.”  The court found that it has the power to make use of an advisory jury in this case. Because of the purely advisory function that a jury empaneled under Rule 39(c) has, the use of an advisory jury is not precluded under 28 U.S.C. § 2402. The court concluded it will empanel a jury to hear the bellwether plaintiffs’ claims against the non-governmental defendants in the bellwether trials and will exercise its discretion to use that jury in an advisory capacity to hear the claims against the government in those same trials.

This advisory jury will not be asked or allowed to make a binding factual determination on the plaintiffs’ FTCA claims; instead, it will be allowed to hear the case and, through the verdict, advise the court, who will remain free to consider the same evidence and completely disregard such findings. The court determined that utilizing an advisory jury will alleviate jury confusion that would result if jurors are expected to listen to all the evidence against all the defendants - including FEMA - but then are instructed to ignore any evidence pertinent to the government.
 

 

National Juries For National Cases?

At MassTortDefense we typically focus on cases, statutes, and the like, but certainly can make room for a thought-provoking academic piece. Professor Laura G. Dooley, Valparaiso University, has written National Juries For National Cases: Preserving Citizen Participation In Large-Scale Litigation in the NYU Law Review. Her observation: procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralization of cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for calls to eliminate jury trial in complex cases altogether. Yet, the jury is at the heart of a uniquely American understanding of civil justice, and the Seventh Amendment still mandates its use in federal cases. This article makes a new proposal designed to the constitutional and functional value of citizen participation in the civil justice system by aligning the jury assembly mechanism with the scope of the litigation.

When parties litigate a case of national scope, often a mass tort, this article argues
that the proper jury pool is neither local (as in state court, where jury pools are typically defined along county lines) nor regional (as might be true in a federal district), but rather a national jury drawn from a national pool.

The professor argues that this idea would eliminate incentives to forum-shop into local jury pools, and would make the decision-making body commensurate with the polity that will feel the effects of its decisions. She also postulates a higher level of legitimacy for decisions rendered by a national jury in national cases because they would not be subject to the criticism that a local jury is imposing its values on the rest of the country, and because geographical diversification of the jury would enhance the quality of decision-making. She asserts that the allegedly waning legitimacy of the civil jury in large-scale litigation reflects the disparity between the scope of the local jury pool and the scope of the cases. Moreover, the democratic values animating the Seventh Amendment can best be realized in large-scale litigation by empaneling a national jury, she says.

Interesting. In mass torts, we certainly have seen considerable forum shopping by plaintiffs; frequent attempts by defendants to remove to federal court because of jury pool issues; much anxiety over the use and selection of bellwether trials; and ongoing debate about the role of MDL courts in the early trials in consolidated federal litigation. Readers may have some comments on this one....